1. Applicant's Name: a. Application Date: 6 September 2020 b. Date Received: 15 September 2020 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: a. Applicant's Requests and Issues: (1) The current characterization of service for the period under review is general (under honorable conditions). The applicant requests an upgrade to honorable. (2) The applicant seeks relief contending, stating they were not given a chance to use the open door policy. The suffered from being sexually harassed while they were in their Advanced Induvial Training (AIT) and their mental health history exacerbated the situation. The information stated by their later leadership about them is untrue, the leadership only wanted to protect themselves. b. Board Type and Decision: In a records review conducted on 11 October 2023, and by a 5-0 vote, the board determined the discharge is inequitable based on the applicant's adjustment disorder, social phobia, major depressive disorder, histrionic personality disorder, borderline and personality disorder outweighing the basis for separation - disrespect to a commissioned officer; assaulting or disobeying a superior officer/ disrespect to a noncommissioned officer; failure to obey a lawful order and failure to obey a direct order. Accordingly, the board voted to grant relief in the form of an upgrade of the characterization of service to honorable, and upgrade of the narrative reason for separation to Secretarial Authority with a corresponding SPD code of JFF. The applicant's condition while mitigating is also service limiting, thus the board voted not to change the RE code. 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct, (Serious Offense) / Army Regulation 635-200, Paragraph 14-12c / JKQ / RE-3 / General (Under Honorable Conditions) b. Date of Discharge: 11 August 2020 c. Separation Facts: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 9 October 2018 / 6 years b. Age at Enlistment / Education / GT Score: 19 / HS Diploma / 126 c. Highest Grade Achieved / MOS / Total Service: E-3 / 15Y1O Army Helicopter-64 Armament Electrical Avionic Systems Repairer / 11 August 2020 d. Prior Service / Characterizations: None e. Overseas Service / Combat Service: None f. Awards and Decorations: NDSM, GWTSM, ASR g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: (1) DA Form 4856 (Developmental Counseling Form), dated 8 January 2020, provided by the applicant, reflects the applicant received event oriented counseling, from their platoon sergeant, for disrespect to a Commissioned Officer; disrespect to a Noncommissioned Officer (NCO); failure to obey a lawful order; and failure to obey a direct order. (a) Part III (Summary of Counseling) states that on 7 January 2020, the applicant disrespected Major S____, First Sergeant T____ and their platoon sergeant for a second time during a counseling session discussing a prior event. During this counseling session, the applicant used a disrespectful tone and posture and talking loudly over their superiors. The applicant refused several lawful orders to remain silent and not interrupt while their superiors were speaking. Because of the applicant's repeated actions, the platoon sergeant is recommending the applicant's separation for a pattern of misconduct, chapter 14, for being in violation a second time of Article 89 (Disrespect toward a superior commissioned officer), Article 90 (Assaulting or Disobeying a Superior Officer), Article 91 (Insubordinate Conduct Toward Warrant Officer, NCO, or Petty Officer), and Article 92 (Failure to Obey an Order or Regulation) of the Uniform Code of Military Justice (UCMJ). (b) In the Session Closing section, the applicant marked "disagree with the information above" and hand wrote, in part, "I utilized the open door policy to talk to 1SGT [first sergeant]" and "all my remarks are attached as typed in the following pages." In the applicant's two rebuttals consisting of 23 pages, they address their side of the story of the violations of the Articles of the UCMJ, refuting the claims against them. (2) Headquarters, Third Infantry Division and Fort Stewart Orders 216-0007, dated 3 August 2020, reassigned the applicant to the U.S. Army transition point for transition processing with a reporting date of 11 August 2020. The date of discharge unless changed or rescinded is 11 August 2020. (3) A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate or Rank) - Private * item 4b (Pay Grade) - E-1 * item 12c (Net Active Service This Period) - 1 year, 10 months, 3 days * item 12i (Effective Date of Pay Grade) - 20 February 2020 * item 24 (Character of Service) - Under Honorable Conditions (General) * item 25 (Separation Authority) - Army Regulation 635-200, Paragraph 14-12c * item 26 (Separation Code) - JKQ [Misconduct, Commission of a Serious Offense] * item 27 (Reentry Code) - 3 * item 28 (Narrative Reason for Separation) - Misconduct, (Serious Offense) (4) The Enlisted Record Brief, dated 12 August 2020, reflects the applicant was advanced to the rank of private first class/E-3 on 9 October 2019 and was later reduced to the rank of private/E-1 on 20 February 2020. The applicant received suspension of favorable action on 8 January 2020 for adverse action and Army Physical Fitness Test failure and on 28 May 2020 for involuntary separation. i. Lost Time / Mode of Return: None j. Behavioral Health Condition(s): (1) Applicant provided: (a) Behavioral Health Patient Discharge Summary, dated from 31 January 2020 to 5 February 2020, reflects the applicant was under the care of for evaluation and management of adjustment disorder with mixed anxiety and depressive symptoms, excoriation. The applicant was not prescribed any new medications upon discharge. (Note: only page 1 of 5 was in evidence). (b) Behavioral Health Patient Discharge Summary, dated from 5 March 2020 to 9 March 2020, reflects the applicant was admitted to the inpatient psychiatric ward for stabilization and treatment. The applicant was started on medication for management of anxiety, depression, mood stabilization, excoriation, and sleep. (2) AMHRR Listed: None 5. APPLICANT-PROVIDED EVIDENCE: * DD Form 293 * Undergraduate Official Transcript, reflecting the applicant's grade point average of 3.67 * DA Form 4856, as reflected in paragraph 4h (1) above * Two Behavioral Health Patient Discharge Summaries, as reflected in paragraph 4j (1) above * DD Form 2910 (Victim Reporting Preference Statement) reflecting the applicant submission of a Restricted Report * DD Form 214 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Title 10, U.S. Code, Section 1553, (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, Title 10 U.S. Code, Section 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense (DoD) Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board) sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Title 10 U.S. Code; Section 1553 and DoD Directive 1332.41 and DoD Instruction 1332.28. d. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 19 December 2016, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. (1) An Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (2) A General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (3) A Under Other Than Honorable Conditions Discharge is an administrative separation form the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial. (4) Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. Paragraph 14-12c (Commission of a Service Offense), stated a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. (5) Chapter 15 (Secretarial Plenary Authority), currently in effect, provides explicitly for separation under the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the Army's best interest. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. e. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "JKQ" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, misconduct (serious offense). f. Army Regulation 601-210 (Regular Army and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the U.S. Army Reserve, and Army National Guard for enlistment per DoD Instruction 1304.26. It also prescribes the appointment, reassignment, management, and mobilization of Reserve Officers' Training Corps cadets under the Simultaneous Membership Program. Chapter 4 provides the criteria and procedures for waiverable and nonwaiverable separations. Table 3-1, defines reentry eligibility (RE) codes: (1) RE-1 Applies to: Person completing his or her term of active service who is considered qualified to reenter the U.S. Army. Eligibility: Qualified for enlistment if all other criteria are met. (2) RE-3 Applies to: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiverable. Eligibility: Ineligible unless a waiver is granted. (3) RE-4 Applies to: Person separated from last period of service with a nonwaiverable disqualification. This includes anyone with a DA imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service retirement) with 18 or more years active Federal service. Eligibility: Ineligible for enlistment. 8. SUMMARY OF FACT(S): a. Standard of Review. The Army Discharge Review Board considers applications for upgrade as instructed by DoD Instruction 1332.28. b. A review of the available evidence provides an administrative irregularity in the proper retention of records, specifically the AMHRR is void of the case files for approved separation. Due to the lack of evidence the specific facts and circumstances surrounding the misconduct to be discharged under the provision on Army Regulation 635-200, paragraph 14-12c are unknown. Notwithstanding the absence of records, the DD Form 214, signed by the applicant, provides the applicant was discharged with a character of service of general (under honorable conditions) for misconduct (serious offense) rather than a discharge under other than honorable conditions, which is normally considered appropriate. They completed 1 year, 10 months, and 3 days of their 6-year contractual obligation. c. Chapter 14 establishes policy and prescribes procedures for separation members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. d. Published DoD guidance indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. The Board's Medical Advisor, a voting member, reviewed the applicant's DOD and VA health records, applicant's statement, and/or civilian provider documentation and found that the applicant has the following potentially mitigating diagnoses/experiences: The applicant held multiple diagnoses in-service to include Adjustment Disorder, Social Phobia, Major Depressive Disorder, Histrionic Personality Disorder, and Borderline Personality Disorder. The applicant reported multiple MSTs with sexual harassment. (2) Did the condition exist, or experience occur during military service? Yes. The applicant held multiple diagnoses in-service to include Adjustment Disorder, Social Phobia, Major Depressive Disorder, Histrionic Personality Disorder, and Borderline Personality Disorder. The applicant reported multiple MSTs with sexual harassment. (3) Does the condition or experience actually excuse or mitigate the discharge? Yes. The Board's Medical Advisor applied liberal consideration and opined that given the nexus between trauma and difficulty with authority, if disobeying and disrespect are the basis for separation, the misconduct is mitigating. (4) Does the condition or experience outweigh the discharge? Yes. The Board concurred with the opinion of the Board's Medical Advisor, a voting member. As a result, the ADRB applied liberal consideration and found that the applicant's adjustment disorder, social phobia, major depressive disorder, histrionic personality disorder, borderline personality disorder and mitigating multiple MSTs with sexual harassment outweighed the applicant's basis for separation - disrespect to a commissioned officer; assaulting or disobeying a superior officer/ disrespect to a noncommissioned officer; failure to obey a lawful order and failure to obey a direct order- for the aforementioned reasons. b. Response to Contention(s). (1) The applicant requests an upgrade to honorable. The board considered this contention and determined that relief was warranted based on the applicant's adjustment disorder, social phobia, major depressive disorder, histrionic personality disorder, borderline personality disorder and mitigating multiple MSTs with sexual harassment. Therefore, the board voted to grant relief in the form of an upgrade of the characterization of service to honorable, and upgrade of the narrative reason for separation to Secretarial Authority with a corresponding SPD code of JFF. (2) The applicant contends they were not given a chance to use the open door policy. The Board considered this contention along with the totality of the applicant's military records and found no evidence of the command acting in an arbitrary or capricious manner. Nevertheless, the Board voted that relief was warranted as outlined above in paragraph 9b (1) of this document. (3) The applicant contends they suffered from being sexually harassed while they were in AIT and their mental health history exacerbated the situation. The Board considered this contention during proceedings, but ultimately did not address the contention due to an upgrade being granted based on the information outlined above in 9a (1) and (4). c. The Board also determined the discharge was inequitable based on the applicant's adjustment disorder, social phobia, major depressive disorder, histrionic personality disorder, borderline personality disorder and mitigating multiple MSTs with sexual harassment outweighed the applicant's basis for separation as outlined in above in 9a (1) and (4) of this document. Thus, relief is warranted. The applicant may request a personal appearance hearing to address further issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted to change the applicant's characterization of service to honorable because of the presence of limited use information in the discharge packet, thus the prior characterization is no longer appropriate. (2) The Board voted to change the reason for discharge to Secretarial Authority since the applicant's PTSD mitigated the applicant's misconduct of marijuana and cocaine use, thus the reason for discharge is no longer appropriate. The SPD code associated with the new reason for discharge is JFF. (3) The RE code will not change, as the applicant's BH condition is mitigating and service limiting 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: Yes b. Change Characterization to: Honorable c. Change Reason / SPD code to: Secretarial Authority / JFF d. Change RE Code to: No Change e. Change Authority to: AR 635-200, Chapter 15 Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma N/A - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OBH (I) - Other Behavioral Health (Issues) OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Re-entry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20210005361 1